REVISED OPINION - 7/25/2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-50316

_____________________ ROBERT D. SIKES,

Plaintiff-Appellee-Cross-Appellant,

versus

JUAN F. GAYTAN, Individually and

in his Official Capacity as a Guard,

Defendant-Appellant-Cross-Appellee.

_________________________________________________________________

Appeals from the United States District Court for the

Western District of Texas

_________________________________________________________________

July 25, 2000

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this section 1983 appeal, Robert Sikes, a Texas prisoner,

claims that Juan Gaytan, a Texas prison guard, used excessive force

against him and thereby violated his Eighth Amendment rights to be

free of cruel and unusual punishment. Sikes proved to a jury that

o n August 22, 1995, he was severely beaten by the defendant, a

sergeant at the Connally Unit. Specifically, Sikes presented

evidence that, following his altercation with a prison guard (after1 Additionally, Gaytan appeals (1) the sufficiency of the

evidence supporting the trial court’s decision to instruct the jury

on future damages and medical expenses, and (2) the amount of the

punitive damages award. The record reveals ample evidence on the

issue of future damages to support the district court’s decision to

instruct the jury in this regard, and to support the jury’s award

of damages. See Esposito v. Davis

, 47 F.3d 164, 167 (5th Cir.

1995)(stating that “there is no abuse of discretion in denying a

motion for new trial unless there is [a] complete absence of

evidence to support the verdict”). Further, when the amount of the

punitive damages award is evaluated in the light of the Supreme

Cour t’s decision in B MW of North America, Inc. v. Gore

, 517 U.S.

559 (1996), it is clear that the award is not excessive. See id.

at 574-75.

On cross-appeal, Sikes seeks review of the amount of

attorney’s fees awarded by the trial court. The record shows that

the court did not abuse its discretion by: (1) reducing the amount

of rec overable fees on fees; and (2) reducing the award of

attorney’s fees by ten percent due to failure of Sikes to succeed

on his claims against Gaytan in his official capacity. S ee Riley

v. City of Jackson , 99 F.3d 757, 759 (5th Cir. 1996)(stating that

“this court reviews the district court’s award of attorney’s fees which Sikes spit on the guard), Gaytan handcuffed him, took him to

the ground, punched him in the face five or six times, and then

repeatedly jumped up and down on his left arm until he heard a loud

pop. As a result of this assault, Sikes suffered a dislocated left

shoulder, injuries to his left elbow, conjunctival hemorrhaging to

his left eye, loss of vision in his left eye, and severe bruising

and lacerations to his face. Additionally, he produced evidence

that he suffers from posttraumatic stress syndrome resulting from

this assault.

The jury returned a verdict against Gaytan in his individual

capacity, finding that he had used excessive force against Sikes in

violation of his Eighth Amendment rights. On appeal, Gaytan seeks

review of the district court’s denial of a separate jury

interrogatory on the defense of qualified immunity. 1authorized by statute for abuse of discretion”).

3 Gaytan argues that the trial court erred when it denied his

request to submit separate jury interroga tories on the issues of

whether he violated Sikes’s constitutional rights and whether his

actions were reasonable. Although Gaytan does not identify any

authority to suppo rt his assertion that a separate jury

interrogatory was required, he argues that the court confused the

jury by submitting the issues in one jury interrogatory.

The trial court denied Gaytan’s request to submit separate

interrogatories based on its belief th at “the submission of the

issue of liability and qualified immunity as one issue eliminated

the concern of irreconcilability.” In reaching this conclusion,

the court was guided by our decision in Snyder v. Trepagnier , 142

F.3d 791 (5th Cir. 1998), in which we discussed the potential

c onflict created by submitting separate jury interrogatories on

liability and qualified immunity.

In Snyder

, the district court submitted separate jury

interrogatories on the issues of whether the defendant violated the

plaintiff ’s constitutional rights and whether the actions of the

defendant were reasonable. I d. at 800. The jury returned what

appeared to be an irreconcilable verdict--finding that the

defendant had violated the constitutional rights of the plaintiff,

but that the defendant’s actions were reasonable. Id. Based on

these answers, however, the dis trict court granted qualified4

immunity to the defendant. I d. On appeal, we addressed the issue

of whether there was an inherent conflict between a finding that

the plaintiff’s constitutional rights were violated and a finding

that the defendant, in violation those rights, acted reasonable.

Id. The court, relying on Judge Higginbotham’s concurrence in

Melear v. Spears

, 862 F.2d 1177, 1187-88 (5th Cir. 1989)(stating

that “it is possible for a jury to find that, although the actual

circumstances of the search did not justify the officer’s behavior,

the circumstances that appeared to the officer would have justified

a search,” and thus the officer was shielded from liability by

qualified immunity), held that “the re is no internal conflict in

the verdict.” Id. at 801.

In the course of the Snyder opinion, the court stated that:

“A related question is whether the issues of liability and

qualified immunity should have been fashioned as one issue or, as

the district court submitted them, as two issues.” Id. at 800.

Although the Snyder court did not specifically address this

question, Snyder can be read, as noted by Judge Garza in his able

dissent, to implicitly permit “a trial court to combine qualified

immunity and the liability issue in the same jury charge.” It is

clear, however, that regardless of whether the trial court submits

the issues of liability and qualified immunity in one or two

interrogatories, the centra l focus is on whether the trial court

cor rectly and clearly instructed the jury. In making this

determination, jury interrogatories are considered “in conjunction5

with the genera l [jury] charge” to determine if “the

interrogatories adequately presented the contested issues to the

jury.” B arton’s Disposal Service, Inc. v. Tiger Corp.

, 886 F.2d

1430, 1435 ( 5th Cir. 1989)(citing D reiling v. General Electric,

Co. , 511 F.2d 768, 774 (5th Cir. 1975)).

In the case at bar, the court was very clear in instructing

the jury on the defense of qualified immunity:

If you find that the plaintiff has proven his claim,

you must then consider the defendant’s defense that his

conduct was objec tively reasonable in the light of the

legal rules clearly established at the t ime of the

incident in issue and that the defendant is therefore not

liable

.

If, after considering the scope of di scretion and

responsibility generally given to prison officials in the

performance of their duties, you find from a

preponderance of the evidence tha t the plaintiff has

proved either (1) that the defendant was plainly

incompetent , or (2) he knowingly violated the law

regarding the plaintiff’s constitutional rights, you must

find for the plaintiff. If, however, you find that the

defe ndant had a reasonable belief that his actions did

not violate the constitutional rights of the plaintiff,

then you cannot find him liable even if the plaintiff’s

r ights were in fact violated as a result of the

defendant’s objectively reasonable action

.

(Emphasis added). Thus, the question we must address is whether

the court abused its discretion in deciding to combine the issues

of liab ility and qualified immunity into a single interrogatory.

See Barton’s

, 886 F.2d at 1434 (stating that “a trial court is

afforded great latitude in the framing and structure of the

i nstructions and the special interrogatories given to th e

jury,

. . . [and we w ill not] disturb that discretion absent a6

showing of abuse of discretion”). The court gave the following

interrogatory:

Considering all of the instruction in the jury charge, do

you find that Plaintiff Robert D. Sikes proved by a

preponderance of the eviden ce that on August 22, 1995,

Defendant Juan F. Gaytan violated Plaintiff’s Eighth

Amendment constitutional right to be free from cruel and

unusual punishment.

In denying the defendant’s reques t for a separate jury

interrogatory on qualified immunity, the trial court concluded that

giving separate interrogatories created the possibility of

confusing the jury , resulting in the return of “irreconcilable”

answers. It is plausible that a jury could be confused by an

interrogatory asking whether the force Gaytan used against Sikes

amounted to cruel and unusual punishment, and then being asked in

an i m mediately following interrogatory whether the conduct of

Gaytan was reasonable. Indeed, finding that the force used against

Sikes was cruel and unusual would ordinarily seem to preclude the

possibility of a finding that a ctions of Gaytan were reasonable.

Still, we are constrained also to say that a plausible argument can

be made that a separate int errogatory on qualified immunity,

supported by a clear jury instruction, arguably could clarify

rather than confuse the issue before the jury. In the light of

this equipoise, we must conclude that the district court did not

abuse its discretion in this case by giving a single jury

instruction on the issues of liability and qualified immunity.

The judgment of the district court is in all respects7 A F F I R M E D.8

REYNALDO G. GARZA, Circuit Judge, dissenting:

The majority concluded that Gaytan’s challenge to the

district court’s failure to give a separate interrogatory on

the issue of qualified immunity lacked merit. I respectfully

dissent because Gaytan has satisfied his burden of

demonstrating that the absence of a separate interrogatory on

qualified immunity “misled, prejudiced, or confused” the jury.

See Whitehead v. Food Max of Miss., Inc

. , 163 F.3d 265, 272

(5 th Cir. 1998) (ci t ations omitted). Although the district

court instructed the jury on the basic elements of the defense

of qualified immunity in the general jury charge, a separate

interrogatory was necessary given the fact s of this case to

avoid jury confusion.

Several factors support my conclusion. First, qualified

immunity was the central i s sue of the prison guard’s defense

in this Section 1983 case. In fact, it is often the crux of

such cases. The more important an issue, the more we should

require that jur y instructions and special interrogatories

direct the jury’s attention to tha t issue. We should

therefore be especially concerned that the trial court failed

to draw the jury’s attention to this issue in the jury

instructions and in a separate special interrogatory.

In that light, several failures to direct the jury’s9

attention to the qualified immunity issue trouble me in this

case. First, the jury instructions did not even use the term

“qualified immunity.” Second, the jury instructions merely

used qualified immunity-type language as part of a single

paragraph on liability. Third, there was no separate special

interrogatory which told the jury t o consider qualified

immunity.

Fourth, and perhaps most tr o ubling, even if we give the

instructions the benefit of the doubt, we will find that the

jury charge and the interrogatories are inconsistent. Let us

say we assume t hat the jury charge provided to the jury

instructions on both excessive force and qualified immunity

but an inter rogatory only as to excessive force. The jury

could well have understood t he difference between the

substantive claim of excessive force and defense of qualified

immunity, but then coul d have been confused as to the odd

disappearance of qualified immunity in the inte r rogatories.

In other words, assuming that the j u ry instructions explain

that liability in this case had two pr ongs, i.e. that Sike’s

Eighth Amendment rights wer e violated a nd that the officer’s

behavior was unreasonable, the interrogatory contradicted the

instructions when it told the jurors that they only need find

that Sike’s Eight Amendment rights were violated in order to

find Gaytan liable. Accordingly, the First Interrogatory10

states: “Considering all of the instructio ns in the jury

charge, do you find that Plaintiff R obert D. Sikes proved by

a preponderance of the evidenc e that on August 22, 1995,

Defendant Juan F. Gaytan violated Plaintiff’s Eighth Amendment

consti tutional right to be free from cruel and unusual

punishment?” This was all the interrogatory said, and no

other interrogatory spoke to liability.

This is especially troubling because my experience of 18

years on the trial bench and over 21 years on the appellate

bench show that a jury will often miss impor tant issues when

the interrogatories fail to focus the jury’s attention on the

issue. We should be less tolerant of the risk that the jury

will be confused into overlooking such a central issue. Even

if Snyder permits a trial court to combine qualified immunity

and the liability issue in the same jury interrogatory, it

does not permit a trial co urt to confuse the jury by

completely deleting qualified immunity from any of th e jury

interrogatories. S ee Snyder v. Trepagnier, 142 F.3d 791, 800

(5 th Cir. 1998)

, reh’g and reh’g en banc denied, 149 F.3d 1181

(5 th Cir.)

, cert. dismissed, 119 S.Ct. 1493 (1999)

. Snyder

certainly does not permit interrogatories which, because they

are inconsistent with the jury instructions, suggest that the2 The majority citation to B arton’s Disposal Service, Inc.

v. Tige r Corp. , 886 F.2d 1430, 1435 (5 t h Cir. 1989), is not on

poi nt. B arton’s stands for the proposition that jury

interrogatories are considered in conjunction with the jury charge

to determine whether they accurately convey the law as a whole.

Barton’s does not address this case where the interrogatories and

jury instructions are arguably inconsistent, or at least confusing

when taken together.

11 qualified immunity issue has dropped out of play. 2 Given the

facts of this case, we should require that qualified immunity

be discussed in a separate special interrogator y. At a

minim um, we should require that the jury instructions and

interrogatories do not activ ely mislead the jury into

believing that the qualified immunity issue has dropped out of

consideration.

We will never know if the jury would have granted Gaytan

qualified immunity under the facts of this case because there

was no separate interrogatory to draw the jury’s attention to

the objective legal reasonablene ss of his conduct. Gaytan

raised factual issues regarding the force used after removing

Sikes from his cell. First, Gaytan showed that Sikes

demonstrated aggressive, menacing behavior, even spitting at

him in an assaultive manner. Second, Gaytan presented expert

t estimony that Gaytan acted in accordance with the prison’s

policies and pr o cedures in pulling Sikes to the ground to

subdue him. Thus, Gaytan brought evidence from which a jury

could find that he reasonably believed that the forced applied12

to Sikes was reasonable. We have no reason to be confident,

howeve r, that the jury considered these facts to determine

whether Gaytan acted in accordance with the reasonable ness

standard and was thus entitled to qualified immunity. This is

so because there is no separ ate interrogatory and the

interrogatory that we do have actively misleads the jury away

from qualified immunity. Therefore, I respectfully dissent.